Supreme Court of the United States

Transcription

1 dno IN THE Supreme Court of the United States GLOUCESTER COUNTY SCHOOL BOARD, v. Petitioner, G.G., BY HIS NEXT FRIEND AND MOTHER, DEIRDRE GRIMM, ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT Respondent. BRIEF FOR AMICI CURIAE PRESIDING BISHOP OF THE EPISCOPAL CHURCH AND PRESIDENT OF THE HOUSE OF DEPUTIES OF THE EPISCOPAL CHURCH; GENERAL SYNOD OF THE UNITED CHURCH OF CHRIST; JEWISH THEOLOGICAL SEMINARY; RABBINICAL ASSEMBLY; RECONSTRUCTIONIST RABBINICAL ASSOCIATION; RECONSTRUCTIONIST RABBINICAL COLLEGE; RELIGIOUS INSTITUTE, INC.; UNITARIAN UNIVERSALIST ASSOCIATION; UNITED SYNAGOGUE OF CONSERVATIVE JUDAISM; COVENANT NETWORK OF PRESBYTERIANS; FRIENDS FOR LESBIAN, GAY, BISEXUAL, TRANSGENDER, AND QUEER CONCERNS; METHODIST FEDERATION FOR SOCIAL ACTION; MORE LIGHT PRESBYTERIANS; MUSLIMS FOR PROGRESSIVE VALUES; OPEN AND AFFIRMING COALITION OF THE UNITED CHURCH OF CHRIST; RECONCILING WORKS (LUTHERANS FOR FULL PARTICIPATION); AND MORE THAN 1,800 INDIVIDUAL FAITH LEADERS IN SUPPORT OF RESPONDENT JEFFREY S. TRACHTMAN Counsel of Record NORMAN C. SIMON KURT M. DENK CHRISTOPHER S. PALLADINO TIMUR TUSIRAY Attorneys for Amici Curiae KRAMER LEVIN NAFTALIS & FRANKEL LLP 1177 Avenue of the Americas New York, New York (212)

2 i TABLE OF CONTENTS TABLE OF AUTHORITIES... PAGE iii INTERESTS OF AMICI CURIAE... 1 INTRODUCTION AND SUMMARY OF ARGUMENT... 1 ARGUMENT... 5 I. Consistent With Fundamental Constitutional Values, A Wide Cross- Section Of American Religious Traditions Recognizes The Dignity Of Transgender Persons... 7 A. The Premise of Human Dignity Can and Should Inform This Court s Analysis... 8 B. Numerous American Faith Groups and Religious Observers Affirm and Respect Transgender Persons Core Identity II. Diverse Faith Groups And Religious Observers Affirm Transgender Persons Place in Civic Life III. Affirmance Will Not Impinge Upon the Fundamentals Of Religious Belief And Practice, But Rather Will Prevent One Set Of Religious Beliefs From Being Imposed Through Civil Law... 22

3 ii PAGE A. Affirmance Will Not Interfere With The Exercise of Religious Freedoms, Including The Freedom To Teach Religious Principles Concerning Gender Or To Set Parameters For Religious Exercise Consistent With Those Principles B. Affirmance Will Not Impermissibly Burden Religious Individuals Or Entities Freedoms With Respect To Their Public Or Business Affairs C. The Constitution Precludes Imposing Petitioner Amici s (Or Any) Religious Views To Limit Transgender Persons Rights Of Equal Access In Education, Including Because It Would Disfavor Undersigned Amici, Who Affirm A Religious Conception Of Gender Identity And Of Transgender Persons Different From That Of Petitioner Amici CONCLUSION APPENDIX A: STATEMENTS OF INTEREST OF AMICI CURIAE... App. 1

4 Cases iii TABLE OF AUTHORITIES PAGE(S) Bd. of Educ. of Kiryas Joel Vill. Sch. Dist. v. Grumet, 512 U.S. 687 (1994) Brown v. Plata, 563 U.S. 493 (2011)... 9 Burwell v. Hobby Lobby Stores, Inc., 134 S. Ct (2014) Duncan v. Kahanamoku, 327 U.S. 304 (1946)... 8 Elane Photography, LLC v. Willock, 309 P.3d 53 (N.M. 2013) Emp t Div., Dep t of Human Res. of Oregon v. Smith, 494 U.S. 872 (1990) Heart of Atlanta Motel, Inc. v. United States, 379 U.S. 241 (1964)... 8 Hosanna-Tabor Evangelical Lutheran Church & Sch. v. EEOC, 565 U.S. 171 (2012)... 24, 31 Larson v. Valente, 456 U.S. 228 (1982)... 7, 33 Lawrence v. Texas, 539 U.S. 558 (2003)... 9 Lemon v. Kurtzman, 403 U.S. 602 (1971)... 33

5 iv PAGE(S) Loving v. Virginia, 388 U.S. 1 (1967) McCollum v. Bd. of Educ., 333 U.S. 203 (1948) Obergefell v. Hodges, 135 S. Ct (2015)... passim Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833 (1992)... 9 Red Lion Broad. Co. v. F.C.C., 395 U.S. 367 (1969) Roper v. Simmons, 543 U.S. 551 (2005)... 9 Sch. Dist. of Abington Twp., Pa. v. Schempp, 374 U.S. 203 (1963) Sherbert v. Verner, 374 U.S. 398 (1963) Skinner v. Railway Labor Executives Association, 489 U.S. 602 (1989)... 8, 9 Snyder v. Phelps, 562 U.S. 443 (2011) Thomas v. Review Bd. of Indiana Emp t Sec. Div., 450 U.S. 707 (1981) United States v. Alvarez, 132 S. Ct (2012)... 30

6 v PAGE(S) Watchtower Bible & Tract Soc y of N.Y., Inc. v. Vill. of Stratton, 536 U.S. 150 (2002)... 7 Constitutional Provisions First Amendment... passim Eighth Amendment... 9 Statutes & Regulations Title IX, Civil Rights Act of 1964, 52 U.S.C. 2000e et seq.... passim Other Authorities 11th Churchwide Assembly of the Evangelical Lutheran Church in America, A Social Statement on Human Sexuality: Gift and Trust (Aug. 19, 2009), Resource%20Repository/SexualitySS. pdf?_ga=

7 vi PAGE(S) 24th General Synod of the United Church of Christ, Affirming the Participation and Ministry of Transgender People Within the United Church of Christ and Supporting their Civil and Human Rights (adopted July 15, 2003), com/pdf/2003-affirming-the- PARTICIPATION-AND-MINISTRY- OF-TRANSGENDER-PEOPLE-WITHIN- THE-UNITED-CHURCH-OF-CHRIST- AND-SUPPORTING-THEIR-CIVIL- AND-HUMAN-RIGHTS.pdf Adelphi Friends Meeting, Minute Welcoming Transgender Persons (Jan. 13, 2013), html#adelphi Bishop of the Episcopal Diocese of Mississippi, et al., Brief of Amici Curiae in Barber v. Bryant and Campaign for Southern Equality v. Bryant, Nos & (5th Cir. Jan. 3, 2017) Central Conference of American Rabbis, Central Conference of American Rabbis Applauds Attorney General s Directive Forbidding Public School Discrimination against Transgender Students (May 16, 2016), 17

8 vii PAGE(S) Central Conference of American Rabbis, Central Conference of American Rabbis Endorses the Equality Act (July 24, 2015), 20 Central Conference of American Rabbis, The Rights of Transgender and Gender Non-Conforming Individuals (Mar. 16, 2015), resolutions/2015/rights-transgender-andgender-non-conforming-indiv/ Betsy Cooper, et al., Majority of Americans Oppose Laws Requiring Transgender Individuals to Use Bathrooms Corresponding to Sex at Birth Rather than Gender Identity, Public Religion Research Institute (Aug. 25, 2016), presidential-election/... 6 Alexis de Tocqueville, 2 Democracy in America 432 (1840) (J.P. Mayer ed. (1969), George Lawrence trans. (1966), First Harper Perennial Modern Classics (2006))... 2 The Deseret News, Interracial Marriage Discouraged, June 17, DignityUSA, Statement of Position and Purpose, 21

9 viii PAGE(S) The Episcopal Church, Letter to the Episcopal Church From Presiding Bishop, President of House of Deputies, Jesus tells us to love God and love our neighbor as ourselves (June 28, 2016), publicaffairs/letter-episcopal-churchpresiding-bishop-president-housedeputies Evangelical Lutheran Church in America, Gender Identity Discrimination: Social Policy Resolution (Aug. 2013); CWG: LGBTQI Rights, 2016 Transgender Non-Discrimination Campaign, UUMass Action, cwg-transgender-rights/ First Parish in Plymouth, Resolution Demanding That All Persons, Regardless of Sexual Orientation or Gender Identification, Receive Equal Treatment Under the United States Constitution and the Laws of the Land (2013), wp-content/uploads/2014/07/equaltreatment-lgbti-brief.pdf Grace Evangelical Lutheran Church, San Francisco, Pastor, com/p/pastor_2.html... 15

10 ix PAGE(S) Uriel Heilman, Even Orthodox Jews starting to wrestle with transgender issues, Jewish Telegraphic Agency (Apr. 5, 2016), 14 Human Rights Campaign, Stances of Faiths on LGBTQ Issues: Islam Sunni and Shi a, stances-of-faiths-on-lgbt-issues-islam Human Rights Campaign, Stances of Faiths on LGBTQ Issues: Presbyterian Church (USA), stances-of-faiths-on-lgbt-issuespresbyterian-church-usa Jewish Mosaic the National Center for Sexual and Gender Diversity, The Reform Movement on LGBT Issues, / load_page/ Jewish Theological Seminary, History of JTS, 14 Joint Standing Committee on Advocacy and Networking of the Episcopal Church, Memorandum on the Civil Rights of Transgender People (June 9, 2016)... 20

11 x PAGE(S) Robert P. Jones, Attitudes on Same-sex Marriage by Religious Affiliation and Denominational Family, Public Religion Research Institute (Apr. 22, 2015), 6 Connie Larkman, UCC leaders express solidarity with Obama Administration s significant guidance letter regarding Title IX and transgender students, United Church of Christ (May 16, 2016), express_solidarity_with_obama_ administration_significant_guidance_ title_ix_and_transgender_students_ Michael G. Lawler, Interchurch Marriages: Theological and Pastoral Reflections, in Marriage in the Catholic Tradition: Scripture, Tradition, and Experience 222 (Todd A. Salzman, et al., eds., 2004) Leadership Council of Conservative Judaism, Conservative View on Intermarriage, Mazor Guides (Mar. 7, 1995), Denominations/conservative-inter marriage.htm Letter from Faith Organizations Thanking President Obama for Transgender Guidance in Public Schools (June 10, 2016), coalitions.php... 18

12 xi PAGE(S) Sierra Mannie, Simons Says: HB 1523 Is About Bigotry, Jackson Free Press (July 6, 2016), press.com/news/2016/jul/06/simons-sayshb-1523-about-bigotry/ Muslims for Progressive Values, Muslims for Progressive Value: Rejoicing the U.S. Supreme Court s Decision on Marriage Equality (June 26, 2015), 21 Muslims for Progressive Values, Who We Are, MPV Principles, mpv-principles... 14, 21 Michael J. Perry, Religion in Politics, 29 U.C. Davis L. Rev. 729 (1996)... 7 Pew Research Center, America s Changing Religious Landscape (May 12, 2015), RLS full-report.pdf... 6 Pew Research Center, Reports analyzing and highlighting findings in the U.S. Religious Landscape Survey, U.S. Public Becoming Less Religious (Nov. 3, 2015), _RLS_II_full_report.pdf... 5

13 xii PAGE(S) Presbyterian Church (U.S.A.), Theological Task Force on Peace, Unity and Purity of the Church Final Report, A Season of Discernment (2006), org/wp-content/uploads/2009/10/www. pcusa.org_peaceunitypurity_finalreport_ final-report-revised-english.pdf Rabbinical Assembly, Press Release, Conservative Movement Affirms Rights of Transgender and Gender Non- Conforming People (June 2, 2016), conservative-movement-affirms-rightstransgender-and-gender-non-conformingpeople Rabbinical Assembly, Resolution Affirming the Rights of Transgender and Gender Non-Conforming People (Apr. 6, 2016), resolution-affirming-rights-transgenderand-gender-non-conforming-people Reconstructionist Rabbinical Association, Resolution in Solidarity with and Affirming the Rights of Transgender, Non-Binary, and Gender Non-Conforming People (draft) (Feb. 2017) San Francisco Theological Seminary, History of SFTS, 15 San Francisco Theological Seminary, Non- Discrimination Policies, students/non-discrimination-policies/... 15

14 xiii PAGE(S) Brian R. Seage, Bishop of the Episcopal Diocese of Mississippi, HB 1523 Press Release In Light of Senate Passage, The Episcopal Church in Miss. (Mar. 31, 2016), dfc/newsdetail_2/ Pamela Smoot, Race Relations, How Do Baptists Treat Their Brothers and Sisters?, History Speaks, To Hard Questions Baptists Ask (2009), racerelations.pdf... 6 Rebecca Spence, Transgender Jews Now Out of Closet, Seeking Communal Recognition, Forward (Dec. 31, 2008), com/news/14854/transgender-jews-nowout-of-closet-seeking-commun-03088/ United Church of Christ, UCC leaders speak out against North Carolina transgender law, (Apr. 2, 2016), news_ucc_leaders_speak_out_against_ north_carolina_transgender_law_ , 20 United Methodist Church, Social Principles: The Social Community, the-social-community United States Conference Of Catholic Bishops, Compendium of the Catechism Of The Catholic Church (2006)... 25

15 xiv PAGE(S) United States Department of Education, Office for Civil Rights, Exemptions from Title IX, offices/list/ocr/docs/t9-rel-exempt/ index.html Unitarian Universalist Association, Business Resolution of the General Assembly, Confronting Sexual Orientation and Gender Identity Discrimination (2010), ments/ shtml Unitarian Universalist Association, Delegates of the 2016 UUA General Assembly, Action of Immediate Witness, Stop the Hate: Protect and Support our Transgender and Gender Non-Conforming Family (2016), statements/stop-hate-protect-andsupport-our-transgender-and-gendernon-conforming-family Unitarian Universalist Association, LGBTQ History & Facts, lgbtq/history/ shtml University of Cambridge, Research News, Global Christian attitudes towards transgenderism softening, study suggests (Dec. 2, 2015), research/news/global-christian-attitudestowards-transgenderism-softening-studysuggests... 16

16 1 INTERESTS OF AMICI CURIAE 1 Amici curiae ( Amici ) comprise a broad range of religious stakeholders (including over 1,800 individual clergy and faith leaders) who affirm and cherish human dignity, freedom of religion and conscience, and equal rights. Amici come from faiths that have approached issues related to gender identity in different ways over the years, but are united in believing that the fundamental human dignity shared by all persons requires treating transgender students like Respondent Gavin Grimm ( Gavin ) in a manner consistent with their gender identity. Amici also believe that, in our diverse and pluralistic society, the civil rights of transgender persons must be addressed according to religiously neutral principles of equal protection under the law. The interests of each of the institutional Amici, and a complete list of individual Amici, are set forth in Appendix A. INTRODUCTION AND SUMMARY OF ARGUMENT Over a century and a half ago, Alexis de Tocqueville reflected on religion s central role in the birth of the English colonies in America and its 1 All parties have consented to the filing of this amicus curiae brief: Petitioner filed a letter of consent with the Clerk of the Court to the filing of amicus curiae briefs in support of either party or of neither party, and Respondent granted the written request of undersigned counsel to file this brief. No counsel for a party authored this brief in whole or in part, and no person or entity besides undersigned Amici and their counsel made a monetary contribution intended to fund the preparation or submission of this brief.

17 2 peculiar power in the cultural life of the United States. He simultaneously identified a necessary corollary at the heart of religious freedom: In America religion has, if one may put it so, defined its own limits. There the structure of religious life has remained entirely distinct from the political organization. It has therefore been easy to change ancient laws without shaking the foundations of ancient beliefs. 2 Tocqueville may have been overly optimistic about the ease with which ancient laws submit to change, but his reflection remains strikingly relevant in the face of arguments by certain amici supporting Petitioner who ask this Court to interpret and resolve this dispute through a particular religious lens. Some purport to speak magisterially on behalf of Christianity[,]... Islam, Orthodox Judaism, and many other religions, pressing these faiths allegedly monolithic teach[ing] that sexual identity is fixed by God at conception. 3 Some also suggest that transgender persons expression of their gender identity pose[s] conflicts with religious liberty that this Court should resolve[] in favor of free exercise of religion. 4 Undersigned Amici, however, bear witness 2 Alexis de Tocqueville, 2 Democracy in America 432 (1840) (J.P. Mayer ed. (1969), George Lawrence trans. (1966), First Harper Perennial Modern Classics (2006)) (paragraph break omitted). 3 Brief Amicus Curiae of Foundation for Moral Law in Support of Petitioner 15 ( FML Br. ); see also Brief of Major Religious Organizations as Amici Curiae Supporting Petitioner 4-28 ( MRO Br. ) (arguing that [m]ajor religions teach that personal identity as male or female is a divinely created and immutable characteristic ). 4 FML Br. at 14, 16-17; see also MRO Br. at 1 (arguing that [t]he religious liberty [Petitioner amici] cherish is threatened by the Fourth Circuit s decision ).

18 3 to diverse viewpoints on gender identity across various faiths and denominations demonstrating that religion does not speak with one voice on this question. In any event, simply by living their lives and using the same public restrooms available to their peers, transgender students threaten no one s religious freedom. Returning to Tocqueville s insight about the structures of religious life religion may, and does, address gender identity, among myriad other questions that inform human experience. But religious questions are best left to be addressed by religion not public school personnel, lawyers, or courts. Endorsing religion s role in American life but objecting to its being co-opted for judicial purposes, Amici embrace varying theological perspectives on gender identity but unite in affirming that transgender persons possess inherent dignity a concept that has explicitly informed this Court s jurisprudence for decades, and increasingly so with respect to equal protection and allied rights doctrines. This affirmation reflects the deeply rooted belief, common to many faiths, in the essential worth of all individuals and, more particularly, the growing respect accorded within theological traditions to transgender persons. Faiths embracing the fundamental dignity of transgender persons participate in the mainstream of American religious observance. They include denominations such as the Episcopal Church, the Evangelical Lutheran Church of America, the Presbyterian Church, the Unitarian Universalist Association, and the United Church of Christ; portions of the Religious Society of Friends (Quakers); Judaism s Conservative, Reconstructionist, and Reform movements; and countless individual religious believers from faiths ranging

19 4 from Roman Catholicism to Islam who today celebrate and embrace equal dignity for transgender persons. The broad and growing embrace of transgender individuals within mainstream religion includes as well support for their fair and equal treatment in civic life. This includes treating transgender students in a manner consistent with their gender identity and endorsing policies that do the same. It also includes opposing harsh laws that seek to stigmatize and marginalize transgender people (and LGBTQ people generally) by legitimizing discrimination against them in the public sphere including, as relevant here, by legitimizing false narratives about transgender people under the guise of endorsing bathroom safety or modesty. Addressing issues involving transgender persons rights according to religiously neutral principles of equal protection under the law will not impinge upon religious belief, doctrine, or practice. Religious congregations will remain free, however Title IX is interpreted, to determine who satisfies the requisites of faith profession, and to teach and preach about gender, gender identity, or human sexuality in keeping with their religious tenets. Nor will a religiously neutral approach to genderbased discrimination impinge on the freedoms of religious actors in the public sphere. Numerous Petitioner amici posit a false confrontation between longstanding conceptions of gender and gender identity informed by certain religious doctrines and what some Petitioner amici regrettably label transgenderism, suggesting that being required to treat transgender students equally interferes with their religious liberty. But these arguments confuse

20 5 true freedom of religious exercise with an extravagantly expanded freedom that none of us possess to be free from any offense or contradiction to our sensibilities (religious or otherwise) while functioning in the public sphere of a pluralistic society. In any event, existing legal doctrines equip courts to respond if civil rights law enforcement in fact infringes First Amendment rights. On the other hand, permitting religiously based anti- transgenderism to shape civil rights enforcement would both enshrine religious beliefs in the law and implicitly privilege some religious viewpoints (those that reject the basic existence of transgender persons) over others (those, like Amici s, that embrace such persons existence and dignity). The First Amendment forbids both forms of religious favoritism. Affirmance here will not constitute an attack on religion or signal a judicial imprimatur on changing social mores. Rather, affirmance will confirm that all are entitled to equal protection under the law, while recognizing that the religious pluralism woven into the fabric of our law, culture, and society embraces creative tension an inevitable cacophony of values and beliefs in the public sphere that at minimum requires tolerance of difference, and in its best light reveals the unique vibrancy of American society. ARGUMENT The American religious landscape is vast and diverse. 5 Religious adherents differ on contentious 5 A recent study confirmed that significant majorities of Americans believe in God (89%) and have some formal religious affiliation (76.5%). Pew Research Center, Reports analyzing and highlighting findings in the U.S. Religious Landscape Survey, U.S. Public Becoming Less Religious 3 (Nov ),

21 6 issues, including intra-denominationally, 6 and religious bodies have evolved and disagreed over time on various civil rights and social issues. 7 In view of eport.pdf; see also Pew Research Center, America s Changing Religious Landscape 4 (May 12, 2015), org/files/2015/05/rls full-report.pdf. This includes Americans who are of various Christian denominations, and Jews, Muslims, Buddhists, Hindus, and others. Id. In the parties home state of Virginia, 30% of Pew survey respondents identified as being from the Evangelical Christian tradition, 16% from Mainline Protestant traditions, and 12% each from the historically black Protestant and Catholic traditions, with lesser percentages identifying with a number of other traditions. Id. at Views on marriage rights for same-sex couples are a case in point. [A]s opinions... shifted in the general population, so [did] those of faithful.... A decade ago, the most supportive religious groups were white mainline Protestants and Catholics, with 36 percent and 35 percent support, respectively. [By 2015], major religious groups reside[d] on both sides of this issue and within many key groups such as Catholics support among rank and file members... [came to be] at odds with official church opposition. Robert P. Jones, Attitudes on Same-sex Marriage by Religious Affiliation and Denominational Family, Public Religion Research Institute (Apr. 22, 2015), See also Betsy Cooper, et al., Majority of Americans Oppose Laws Requiring Transgender Individuals to Use Bathrooms Corresponding to Sex at Birth Rather than Gender Identity, Public Religion Research Institute (Aug. 25, 2016), research/lgbt-2016-presidential-election/ ( Today, only about four in ten (41%) Americans say same-sex marriage goes against their religious beliefs, down from 51% in 2013 and 62% in ). 7 For example, the American Baptist Church revised its earlier belief in church and social segregation by race. Pamela Smoot, Race Relations, How Do Baptists Treat Their Brothers and Sisters?, History Speaks, To Hard Questions Baptists Ask

22 7 that history and the wide range of modern religious thought on gender and gender identity, it would be a mistake to elevate any one view above all others as the religious view. Indeed, it would be constitutionally inappropriate, because the Constitution bars government from favoring certain religious views over others. Watchtower Bible & Tract Soc y of N.Y., Inc. v. Vill. of Stratton, 536 U.S. 150, 161 (2002) (observing that First Amendment protections extend whether or not religious exercise is of the more orthodox and conventional variety); Larson v. Valente, 456 U.S. 228, 244 (1982) ( The clearest command of the Establishment Clause is that one religious denomination cannot be officially preferred over another. ). Religious freedom means that all voices may contribute to our national conversation, but particular religious perspectives on gender identity can neither be privileged, nor permitted to control the interpretation of statutes and regulations applicable to all. I. Consistent With Fundamental Constitutional Values, A Wide Cross-Section Of American Religious Traditions Recognizes The Dignity Of Transgender Persons Undersigned Amici respectfully submit that the starting point for any discussion of the treatment of transgender persons as a matter of religious doctrine or civil rights law must be the fundamental dignity that such persons share with all (2009), A prominent law and religion scholar also has noted that religions shifting views on usury, the dissolubility of marriage, and slavery reveal the displacement of a principle or principles that had been taken as dispositive. Michael J. Perry, Religion in Politics, 29 U.C. Davis L. Rev. 729, 772 n.94 (1996).

23 8 other members of the human family. Amici do not thereby argue that their religious views should be accorded any more weight under civil law than those of Petitioner amici. They simply note that this Court s own civil constitutional jurisprudence shares this common touchstone with Amici s religious teachings. A. The Premise of Human Dignity Can and Should Inform This Court s Analysis Justices of this Court began invoking the concept of human dignity in connection with the movement for racial justice in the post-world War II era. In Duncan v. Kahanamoku, 327 U.S. 304 (1946), Justice Murphy decried racism as having no place whatever in our civilization and as render[ing] impotent the ideal of the dignity of the human personality. Id. at 334 (Murphy, J., concurring). And in Heart of Atlanta Motel, Inc. v. United States, 379 U.S. 241 (1964), Justice Douglas described [t]he primary purpose of the Civil Rights Act of [a]s the vindication of human dignity. Id. at 291 (Douglas, J., concurring). These observations did not occur in an historical vacuum. As Harvard political philosopher Michael Rosen has observed, human dignity s intrinsic value has played a very important role in the founding documents of modern human rights discourse. 8 Consistent with this historical footing, successive decisions by this Court have been informed at least in part by a jurisprudence of human dignity. Skinner v. Railway Labor Executives Association, 489 U.S. 602 (1989), acknowledged [t]he interests in human dignity relevant to a Fourth Amendment claim 8 Michael Rosen, Dignity: Its History and Meaning 61 (2012).

24 9 pertaining to employee privacy rights. Id. at 644 (internal quotation marks and citation omitted). Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833 (1992), observed that this Court s precedent respects the most intimate and personal choices a person may make in a lifetime, choices central to [the] personal dignity and autonomy equally central to liberty. Id. at 851. Eighth Amendment decisions also confirm that the Constitution rests upon broad provisions to secure individual freedom and preserve human dignity, Roper v. Simmons, 543 U.S. 551, 578 (2005), and thus have held that providing prisoners inadequate medical care is incompatible with the concept of human dignity and has no place in civilized society, Brown v. Plata, 563 U.S. 493, 511 (2011). Lawrence v. Texas, 539 U.S. 558 (2003), acknowledged that adults [who] may choose to enter upon [a same-sex intimate] relationship... retain their dignity as free persons, id. at 567, and in confirming same-sex couples right to marry, Obergefell v. Hodges, 135 S. Ct (2015), affirmed that fundamental liberties extend to certain personal choices central to individual dignity and autonomy, and that [t]here is dignity in the bond between two men or two women who seek to marry and in their autonomy to make such profound choices. Id. at 2597, Human dignity serves as a point of translation between legal doctrines implicated by this dispute namely, equal protection (as embodied in Title IX) and religious perspectives on transgender identity shared by Amici. Professor Rosen s aforementioned study notes that [d]ignity appears frequently in faith-based ethical discourse, citing the work both of recent Catholic popes and of prominent Protestant theologians while confirming, all the same, that

25 10 human dignity is not the rhetorical property of any single religion. 9 Indeed, The Rabbinical Assembly, representing the rabbis of Conservative Judaism, in 2016 passed a resolution affirming the rights of transgender and gender non-conforming persons. Rabbi Julie Schonfeld associated its analysis with the rabbinic tradition [that] emphasizes the importance of kvod habriyot, human dignity. 10 Similar principles inform Islam, as well. 11 Accordingly, fundamental dignity is not just the starting point for any legal or cultural debate about equal protection for transgender persons; it is also the core principle shaping the views on transgender equality of a substantial portion of the American religious community. B. Numerous American Faith Groups and Religious Observers Affirm and Respect Transgender Persons Core Identity Many religious stakeholders embrace the foundational theological belief in the dignity of transgender Americans as persons. The First Parish Church in Plymouth, Massachusetts tracing its roots to the Pilgrims has affirmed the rights of transgender persons, 12 along with the Unitarian 9 Rosen, supra note 8, at The Rabbinical Assembly, Press Release, Conservative Movement Affirms Rights of Transgender and Gender Non- Conforming People (June 2, 2016), assembly.org/story/conservative-movement-affirms-rights-trans gender-and-gender-non-conforming-people. 11 See discussion infra, notes 24, and accompanying text. 12 First Parish in Plymouth, Resolution Demanding That All Persons, Regardless of Sexual Orientation or Gender Identification, Receive Equal Treatment Under the United States Constitution and the Laws of the Land (2013),

26 11 Universalist Church, which long has proclaimed a commitment to the inherent worth and dignity of every human being, including... transgender individuals. 13 In the past year, the Episcopal Church s Presiding Bishop and President of the House of Deputies affirmed in an open letter to their church the civil rights and God-given dignity of transgender people, 14 and the United Church of Christ publicly reaffirmed its own longstanding commitment to transgender inclusion. 15 Setting forth its 07/Equal-treatment-lgbti-brief.pdf. 13 Unitarian Universalist Association, Business Resolution of the General Assembly, Confronting Sexual Orientation and Gender Identity Discrimination (2010), ments/statements/ shtml. 14 The Episcopal Church, Letter to the Episcopal Church From Presiding Bishop, President of House of Deputies, Jesus tells us to love God and love our neighbor as ourselves (June 28, 2016), 15 Connie Larkman, UCC leaders express solidarity with Obama Administration s significant guidance letter regarding Title IX and transgender students, United Church of Christ (May 16, 2016), with_obama_administration_significant_guidance_title_ix_and_ transgender_students_ ; United Church of Christ, UCC leaders speak out against North Carolina transgender law (Apr. 2, 2016), _north_carolina_transgender_law_ ; 24th General Synod of the United Church of Christ, Affirming the Participation and Ministry of Transgender People Within the United Church of Christ and Supporting their Civil and Human Rights (adopted July 15, 2003), AFFIRMING-THE-PARTICIPATION-AND-MINISTRY-OF-TRANS GENDER-PEOPLE-WITHIN-THE-UNITED-CHURCH-OF- CHRIST-AND-SUPPORTING-THEIR-CIVIL-AND-HUMAN- RIGHTS.pdf; see also notes 32, 40, infra, and accompanying text.

27 12 own stance of respect for the inherent dignity of all persons, the United Methodist Church deplore[s] acts of hate or violence against groups or persons based on... gender identity. 16 The Evangelical Lutheran Church in America also has urged respect for gender identity difference, 17 while the Presbyterian Church (U.S.A.) asserted over a decade ago that the love of God is not confined to the people... of one gender or gender orientation. 18 Likewise, one Meeting (among others) of the Religious Society of Friends (Quakers) has formally stated its understand[ing] that God, who loves all people unconditionally, is leading the Meeting to honor the gender identity of each person, as that person determines it. 19 Within Judaism, the Conservative, Reconstructionist, and Reform movements express similar theological perspectives. The Conservative movement s Rabbinical Assembly last year affirmed its commitment to the full welcome, acceptance, and 16 United Methodist Church, Social Principles: The Social Community, th Churchwide Assembly of the Evangelical Lutheran Church in America, A Social Statement on Human Sexuality: Gift and Trust at 24, 29, 33 (Aug. 19, 2009), elca.org/elca%20resource%20repository/sexualityss.pdf?_ga= Presbyterian Church (U.S.A.), Theological Task Force on Peace, Unity and Purity of the Church Final Report, A Season of Discernment, at 4, (2006), uploads/2009/10/ _final-report-revised-english.pdf. 19 Adelphi Friends Meeting, Minute Welcoming Transgender Persons (Jan. 13, 2013), html#adelphi.

28 13 inclusion of people of all gender identities in Jewish life and general society. 20 Representatives of Reform Judaism likewise have expressed a commitment to the full equality, inclusion and acceptance of people of all gender identities and gender expressions. 21 And the Reconstructionist Rabbinical Association is nearing final approval of a resolution affirming transgender, non-binary, and gender non-conforming persons rights. The draft resolution sets forth an expectation that approval will strengthen[]... the Reconstructionist movement and all affiliated groups through deepening [its] commitments to honoring the dignity of all people and the divine image in every human being,... enriching... Reconstructionist Jewish study and leadership as transgender, nonbinary[,] and gender non-conforming community members are better supported and encouraged to fully realize their potential to contribute to the flourishing of Reconstructionist Judaism. 22 Meanwhile, that Orthodox rabbis have joined this brief, see infra, App. A, even though the Union of Orthodox Jewish Congregations of America has 20 Rabbinical Assembly, Resolution Affirming the Rights of Transgender and Gender Non-Conforming People (Apr. 6, 2016), 21 Central Conference of American Rabbis, The Rights of Transgender and Gender Non-Conforming Individuals (Mar. 16, 2015), 22 Reconstructionist Rabbinical Association, Resolution in Solidarity with and Affirming the Rights of Transgender, Non- Binary, and Gender Non-Conforming People (draft) (Feb. 2017). Undersigned counsel have on file the partially adopted draft, scheduled as of February 2, 2017 for a final vote of approval March 28, 2017.

29 14 joined as an amicus supporting Petitioner, 23 further shows broad respect for transgender persons within Judaism, and religious diversity generally. Likewise, on the basis of the Quranic teaching that God enjoins justice, kindness and generosity toward one s fellow humankind (Qur an 16:90), Muslims for Progressive Values advocates for a future where Islam is understood as a source of dignity, justice, compassion and love for all humanity and the world, and affirm[s] the equal worth of all human beings, regardless of... sex, gender, [or] gender identification. 24 Religious stances affirming transgender persons fundamental dignity also have yielded changes in institutional policy and inclusion in religious leadership. For example, the Jewish Theological Seminary, a pre-eminent institution of Jewish higher education founded in the late 19th century, has moved to revise application procedures to address gender self-identification concerns, admit and ordain transgender and gender-non-conforming individuals, designate gender-neutral restrooms, and adapt certain rituals to ensure that individuals may be called to the Torah without the traditional genderspecific language son of or daughter of. 25 The 23 MRO Br. at Muslims for Progressive Values, Who We Are, mpvusa.org/who-we-are/, MPV Principles, org/mpv-principles (last visited Feb. 9, 2017). 25 Jewish Theological Seminary, History of JTS, (last visited Nov. 4, 2016); Uriel Heilman, Even Orthodox Jews starting to wrestle with transgender issues, Jewish Telegraphic Agency (Apr. 5, 2016),

30 15 Presbyterian Church (U.S.A.) s San Francisco Theological Seminary, also founded in the late 19th century, abides by a Statement of Non- Discrimination that includes protections on the basis of gender identity. 26 Openly transgender persons have been ordained as rabbis 27 and serve as leaders of worship in Christian and Islamic communities. 28 One recent study highlighted by the University of Cambridge confirmed how [a] growing number of 26 San Francisco Theological Seminary, History of SFTS, and Non-Discrimination Policies, (last visited Feb. 24, 2017). 27 Rebecca Spence, Transgender Jews Now Out of Closet, Seeking Communal Recognition, Forward (Dec. 31, 2008), (noting that Rabbi Elliot Kukla came out as transgender just prior to his 2006 ordination as a Reform rabbi, and has been accepted as such by his congregants); Jewish Mosaic the National Center for Sexual and Gender Diversity, The Reform Movement on LGBT Issues, mosaic.org/page/load_page/50 (discussing Hebrew Union College s acceptance of now Rabbi Reuben Zellman as an openly transgender student in 2003). 28 See, e.g., Grace Evangelical Lutheran Church, San Francisco, Pastor, (noting Reverend Megan Rohrer was ordained in 2006, received and reinstated to ELCA roster in 2010 as one of several LGBT pastors previously barred from service, and now serves as a pastor); Human Rights Campaign, Stances of Faiths on LGBTQ Issues: Islam Sunni and Shi a, stances-of-faiths-on-lgbt-issues-islam (noting that LGBTQ imams now hold leadership roles in many communities (emphasis added)); Unitarian Universalist Association, LGBTQ History & Facts, (noting UUA first ordained openly transgender person in 1988, and Reverend Sean Dennison in 2002 became first openly transgender Unitarian minister called to serve a congregation).

31 16 Christian denominations, particularly within Protestant traditions[] are... embracing trans people as congregants and ministers, with [m]uch of the progress ha[ving] taken place in the United States. 29 The study highlighted that, in 1996, Presbyterian Rev. Erin Swenson of Greater Atlanta became the first religious leader of a mainline Christian denomination to retain her post following her gender transition. Since then groups such as the Presbyterian Church USA (in 2010/11) and the Episcopal Church (in 2012) have removed barriers to ordained ministry of transgender persons. 30 In short, religious affirmation that transgender individuals possess the same inherent dignity as any other person, faith communities inclusion of transgender congregants, and acceptance of transgender clergy reveal the extent to which America s religious landscape affirms and includes transgender persons. II. Diverse Faith Groups And Religious Observers Affirm Transgender Persons Place In Civic Life The endorsement by religious stakeholders like Amici of transgender persons human dignity extends 29 University of Cambridge, Research News, Global Christian attitudes towards transgenderism softening, study suggests (Dec. 2, 2015), tian-attitudes-towards-transgenderism-softening-study-suggests (discussing research conducted by Duncan Dormor for inclusion in Jens M. Scherpe (ed.), The Legal Status of Transsexual and Transgender Persons (2015)). 30 Id.; see also Human Rights Campaign, Stances of Faiths on LGBTQ Issues: Presbyterian Church (USA), resources/stances-of-faiths-on-lgbt-issues-presbyterian-church-usa.

32 17 beyond statements of religious profession to advocacy for equal treatment in civil society. With respect to interpretations of Title IX relevant here, Reform Judaism s Central Conference of American Rabbis issued a statement agreeing with the proposition that refusal to allow transgender Americans to use restrooms conforming to their gender identity is forbidden discrimination based on a person s sex. 31 Grounded in the belief that every person is endowed by God with worth and dignity, the United Church of Christ last May similarly expressed solidarity with Department of Education ( DOE ) guidance on Title IX obligations regarding transgender students, urged that schools should treat a student s gender identity as the student s sex and... must not treat a transgender student differently from the way it treats other students of the same gender identity, and applauded DOE for affirming a core tenet of civil rights: that you cannot allow the discomfort of some to justify a policy that singles out and disadvantages a particular class of students. 32 Moreover, thirty-three organizations representing a diverse group of faith traditions and beliefs including several undersigned Amici commended the Obama administration for guidance to schools across the nation to ensure that transgender students are treated with dignity, respect, and consistent with the requirements of federal law, while citing the reminder of many of the 31 Central Conference of American Rabbis, Central Conference of American Rabbis Applauds Attorney General s Directive Forbidding Public School Discrimination against Transgender Students (May 16, 2016), lic-scho/. 32 Larkman, supra note 15 (internal quotation marks omitted).

33 18 signatories sacred texts... that the spark of the Divine is present in every human being and that all people must be treated equally, with dignity and respect. 33 The group at the same time criticized harmful and discriminatory legislation in certain states, especially... that perpetuate[s] false narratives about bathroom safety. 34 A broad range of religious stakeholders have denounced laws targeting transgender citizens, including recent bathroom bills and other demeaning legislation. Many of the undersigned Amici recently joined an amicus brief submitted to the United States Court of Appeals for the Fifth Circuit, supporting a district court decision striking down Mississippi s HB 1523 as unconstitutional because, inter alia, it privileged certain religious views with respect to LGBT rights over others even to the point of interfering with rights protected by the Constitution. 35 Consistent with the Episcopal Church s solidarity with transgender persons, 36 the 33 Letter from Faith Organizations Thanking President Obama for Transgender Guidance in Public Schools (June 10, 2016), (follow June 10, 2016 hyperlink). 34 Id. 35 Bishop of the Episcopal Diocese of Mississippi, et al., Brief of Amici Curiae in Barber v. Bryant and Campaign for Southern Equality v. Bryant, Nos & (5th Cir. Jan. 3, 2017). 36 A series of resolutions by the Episcopal Church s 78th General Convention, held in 2015, advocated for inclusion and the rights of transgender individuals with respect to topics ranging from the reissuance of church certificates after legal name changes to distribution of foreign aid. See, e.g., Journal of the 78th General Convention of the Protestant Episcopal Church in the United States of America, Resolutions 2015-A049, 2015-A051, C037, 2015-D028, 2015-D037 (2016).

34 19 Bishop of the Episcopal Diocese of Mississippi opposed HB 1523, declaring that his community stands as one with our brothers and sisters in the LGBT community because the baptismal covenant requires that each of us will respect the dignity of every human being. 37 Union of Reform Judaism Rabbi Jeremy Simons, who testified before the district court hearing the HB 1523 case, also spoke out: You shall not oppress the stranger, for you were strangers in the land of Egypt,... you will read that 36 times in the Bible. That is more than any other commandment by far,... This is not about religion.... This is about bigotry. 38 Contemporaneous with the HB 1523 controversy, the Unitarian Universalist Association adopted a resolution [s]trongly condemn[ing]... antitransgender legislation in Mississippi, North Carolina, and Tennessee; called for antidiscrimination legislation so that transgender and gender non-conforming people may have their ability to fully participle in society affirmed and protected ; and called for education of law enforcement, healthcare, and education professionals concerning such persons needs. 39 Other religious stakeholders 37 Statement by the Rt. Rev. Brian R. Seage, Bishop of the Episcopal Diocese of Mississippi, HB 1523 Press Release In Light of Senate Passage, The Episcopal Church in Miss. (Mar. 31, 2016), 38 Sierra Mannie, Simons Says: HB 1523 Is About Bigotry, Jackson Free Press (July 6, 2016), com/news/2016/jul/06/simons-says-hb-1523-about-bigotry/ (internal quotation marks omitted). 39 Unitarian Universalist Association, Delegates of the 2016 UUA General Assembly, Action of Immediate Witness, Stop the Hate: Protect and Support our Transgender and Gender Non- Conforming Family (2016),

35 20 endorse transgender persons equal access to employment, housing, public accommodations, education, federal funding, [and] credit, and oppose legislation restricting transgender persons use of public restrooms. 40 And while individual liberties should not be subject to public opinion polls, it is instructive that such views are consistent with those of a majority of the public at large. 41 In other instances, affinity groups associated with mainstream faiths have declared a theological commitment to transgender equality. But two examples are DignityUSA, which works for respect and justice for people of all sexual orientations, genders, and gender identities especially gay, hate-protect-and-support-our-transgender-and-gender-non-conform ing-family. 40 Central Conference of American Rabbis, Central Conference of American Rabbis Endorses the Equality Act (July 24, 2015), see also, e.g., Evangelical Lutheran Church in America, Gender Identity Discrimination: Social Policy Resolution (Aug. 2013); CWG: LGBTQI Rights, 2016 Transgender Non-Discrimination Campaign, UUMass Action, Joint Standing Committee on Advocacy and Networking of the Episcopal Church, Memorandum on the Civil Rights of Transgender People (June 9, 2016); Rabbinical Assembly, Resolution Affirming the Rights of Transgender and Gender Non-Conforming People, supra note 20; Reconstructionist Rabbinical Association, Resolution in Solidarity with and Affirming the Rights of Transgender, Non- Binary, and Gender Non-Conforming People (draft), supra note 22; United Church of Christ, UCC leaders speak out against North Carolina transgender law, supra note Cooper, supra note 6 ( A majority (53%) of Americans oppose laws that require transgender individuals to use bathrooms that correspond to their sex at birth rather than their current gender identity, compared to 35% who favor such laws. ).